[Fedora-legal-list] Fedora and MS-PL (Dynamic Language Runtime)

C.J. Adams-Collier cjac at colliertech.org
Sun Dec 6 23:32:36 UTC 2009


On Sat, 2009-12-05 at 13:31 -0500,
saulgoode at flashingtwelve.brickfilms.com wrote:
> I apologize if resurrecting such an old thread is considered poor  
> etiquette for this list; however, it seems that the discussion in this  
> thread served as a predicate for the MS-PL being deemed acceptable for  
> inclusion in Fedora[1], and I wish to raise a question about that  
> decision[2].

I didn't know that.  I'm glad it has had such an effect.

> While the discussion in this thread effectively addressed the  
> incompatibility between the Microsoft Public License and GNU's General  
> Public license, it focused upon terms of the GPL and whether they  
> might preclude inclusion of MS-PLed code in Fedora. I feel it is far  
> more incumbent to examine the terms and conditions of the MS-PL and  
> consider whether those terms can be satisfied should both MS-PLed code  
> and GPLed code be provided together on a CD/DVD or in a corresponding  
> ISO file.


I'm not certain how they are mutually exclusive aside from where
inter-linking within the same application is concerned...

> In brief, my concern lies with the fact that there is no explicit  
> exception included in the MS-PL for "collective works" or  
> "compilations" as defined under U.S. copyright law[3]; instead the  
> MS-PL is based[4] upon the U.S. Copyright Act's definition of  
> "derivative works"[5] and a license-explicit definition of a  
> "contribution"[6], and it claims for its applicable scope all  
> derivative works of the contribution.

I still do not see how this applies to applications which do not link
between one another, unless you are implying that an .iso file is not a
collection of separate works, but is instead a work in itself.  If this
is the case, then MS-PL and GPL are the least of our problems.  We run
into issues with OpenSSL licenses, LGPL vs GPL, etc.  I think the fact
that this has not been a problem implies that an .iso is not considered
a single work, but a collection.

> This is problematic for a Fedora distribution because, though Fedora  
> should rightly fit the definition for a "compilation", it may still  
> qualify as a "derivative work" as those terms are defined in the U.S.  
> Copyright Act. The two classifications are not of necessity mutually  
> exclusive; as stated in the congressional footnotes to the Copyright  
> Act[7]:
> 
>      "Between them the terms 'compilations' and 'derivative works'
>      which are defined in section 101, comprehend every copyrightable
>      work that employs preexisting material or data of any kind.
>      THERE IS NECESSARILY SOME OVERLAPPING BETWEEN THE TWO, but they
>      basically represent different concepts." (emphasis mine)
> 
> Further coverage of the legal uncertainty at to whether a compilation  
> (or even collective work) can be considered a derivative work can be  
> found in the Copyright Office's "Copyright Registration for Derivative  
> Works" circular[8 (PDF)], and in the first chapter[9] of Lee A.  
> Hollaar's "Legal Protection of Digital Information".
> 
> Though I am an engineer (not a lawyer), it seems the distinction being  
> made in the Copyright Act phraseology is owing to the legislature's  
> desire to clarify the durations and protections of copyright obtained  
> in the constituent parts of a collection or compilation, and not a  
> presumption of the law to interfere with the exclusive rights of the  
> copyright holder to decide the terms and scope under which his work  
> might be licensed. In other words, I find it entirely conceivable that  
> a court would find that it is within an author's rights to prohibit  
> distribution of his work in collections/compilations containing other  
> works which the author may find objectionable.

As I said above, if this is the case, we'd better stop shipping software
collections on iso files ;)

> While my interpretation is by no means conclusive (and certainly not  
> authoritative), it should be noted that it is this legal uncertainty  
> which has prompted other reciprocal licenses to provide explicit  
> exceptions for "collective works". This is addressed employing the  
> term "mere aggregation" in Section 3 of the GPLv2[10], and the term  
> "aggregate" in Section 5 of the GPLv3[11] and in Section 7 of the GNU  
> Free Document License[12]. It is addressed in the Creative Commons  
> Share-Alike by providing a license-specific definition of a  
> "collection" and exempting such collections from reciprocity terms[13].
> 
> I won't speculate as to whether it was the intent of the authors of  
> the Microsoft Public License to consider "mere aggregation" to be  
> excluded from the scope of their reciprocal terms and conditions[14],  
> but regardless of their intent it seems that lack of an exception  
> being explicitly provided within the license itself may potentially  
> lead to a court decision that inclusion of both MS-PLed and GPLed  
> software within a Fedora distribution constitutes copyright  
> infringement -- not because the terms of the GPL weren't met, but that  
> those of the MS-PL were not met.
> 
> Any clarification on this issue would be appreciated.
> 
> Regards.
> 
> 
> 
> ----------------------------------
> [1] http://fedoraproject.org/wiki/Licensing#Software_License_List
>      MS-PL listed under "Software Licenses that are OK for Fedora"
> 
> [2]  
> https://www.redhat.com/archives/fedora-legal-list/2009-August/msg00017.html
>      "The MS Public License is acceptable for Fedora, Free but GPL
>      incompatible. I'm adding it to the table now." -- Tom Calloway
> 
> [3] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html
>      "A 'collective work' is a work, such as a periodical issue, anthology,
>      or encyclopedia, in which a number of contributions, constituting
>      separate and independent works in themselves, are assembled into a
>      collective whole.
>      "A 'compilation' is a work formed by the collection and assembling of
>      preexisting materials or of data that are selected, coordinated, or
>      arranged in such a way that the resulting work as a whole constitutes
>      an original work of authorship. The term 'compilation' includes
>      collective works." -- USC Title 17 Section 101
> 
> [4] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL
>      "The terms 'reproduce', 'reproduction', 'derivative works', and
>      'distribution' have the same meaning here as under U.S. copyright
>      law." -- MS-PL: Definitions
> 
> [5] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html
>      "A 'derivative work' is a work based upon one or more preexisting
>      works, such as a translation, musical arrangement, dramatization,
>      fictionalization, motion picture version, sound recording, art
>      reproduction, abridgment, condensation, or any other form in which
>      a work may be recast, transformed, or adapted. A work consisting of
>      editorial revisions, annotations, elaborations, or other
>      modifications which, as a whole, represent an original work of
>      authorship, is a 'derivative work'." -- USC Title 17 Section 101
> 
> [6] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL
>      "A 'contribution' is the original software, or any additions or
>      changes to the software." -- MS-PL: Definitions
> 
> [7] http://digital-law-online.info/lpdi1.0/treatise6.html
>      "Between them the terms 'compilations' and 'derivative works'
>      which are defined in section 101, comprehend every copyrightable
>      work that employs preexisting material or data of any kind.
>      There is necessarily some overlapping between the two, but they
>      basically represent different concepts. A ?compilation? results
>      from a process of selecting, bringing together, organizing, and
>      arranging previously existing material of all kinds, regardless
>      of whether the individual items in the material have been or ever
>      could have been subject to copyright. A ?derivative work,? on the
>      other hand, requires a process of recasting, transforming, or
>      adapting ?one or more preexisting works?; the ?preexisting work?
>      must come within the general subject matter of copyright set
>      forth in section 102, regardless of whether it is or was ever
>      copyrighted." FN31: H.R. Rep. No. 94-1476
> 
> [8] http://www.copyright.gov/circs/circ14.html
> 
> [9] http://digital-law-online.info/lpdi1.0/treatise6.html
> 
> [10] http://www.gnu.org/licenses/old-licenses/gpl-2.0.html
>       "In addition, mere aggregation of another work not based on
>       the Program with the Program (or with a work based on the
>       Program) on a volume of a storage or distribution medium
>       does not bring the other work under the scope of this
>       License." -- GPLv2
> 
> [11] http://www.gnu.org/licenses/gpl.html
>       "Inclusion of a covered work in an aggregate does not cause this
>       License to apply to the other parts of the aggregate." -- GPLv3
> 
> [12] http://www.gnu.org/licenses/fdl.html
>       "When the Document is included in an aggregate, this License
>       does not apply to the other works in the aggregate which are not
>       themselves derivative works of the Document." -- GFDL
> 
> [13] http://creativecommons.org/licenses/by-sa/3.0/legalcode
>       "A work that constitutes a Collection will not be considered
>       an Adaptation (as defined below) for the purposes of this
>       License." -- CC-SA
> [14] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL
>       "If you distribute any portion of the software in source code
>       form, you may do so only under this license by including a
>       complete copy of this license with your distribution. If you
>       distribute any portion of the software in compiled or object
>       code form, you may only do so under a license that complies
>       with this license." -- MS-PL Section 3d)
> 
> 
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